This is an ancillary relief case in which the Ex Wife (who we’ll call Wife) was making applications for the Ex-Husband (who we’ll call Husband) to make good on the payment that he had been ordered to pay her in the final order of their divorce settlement. He had been ordered to pay her £80,000.

The Husband had a retort to this, which is that he had met with his Wife months earlier and agreed to pay her forty thousand pounds in cash, as a full and final settlement. (It isn’t wonderfully clear why she’d agree to take £40,000 when a Court had just ordered that she would get £80,000, and the argument that it was ‘so that she wouldn’t lose her benefits’ isn’t that convincing)

The Husband’s case is that he met with the Wife in Pizza Express (in Slough) and there handed her £40,000 in notes. Assuming that they were in £50 notes, that’s 800 notes. One fifty pound note weighs 1.1 grams, so 40k is 800 grams or 1.75 pounds for the more experienced reader.

If you piled up £40k in fifty pound notes, it is about ten inches high. I’m going to go out on a limb and say that even in Slough, where people routinely light their Romeo y Julietta cigars with crisp fifty pound notes, a ten inch thick pile of banknotes is going to attract some attention.

[I’m grateful to this website for allowing me to calculate and visualise just what £40,000 in cash might look like

One might imagine that if you were handing over £40,000 in cash, in full and final settlement of an £80k debt, you’d want to get some proof of that.

7. the husband says that in December 2013 he met the wife (and their child) at a Pizza Express in Slough where he paid her £40,000 in cash she having earlier agreed with him to accept this sum in satisfaction of her entitlement under the order. He says she agreed to accept this lesser sum in cash so that her receipt of benefits would not be disturbed. She agreed that her “charge” over the property would be lifted on payment of the £40,000.

The wife flatly denies this. She says that the last time she met the husband was in 2011.

The husband says that he borrowed the £40,000 from his brother. It was in £50 notes in packets of £2,500 – 16 packets in all. He says his brother came with him as well as another person who would act as a witness. He says that he took photos on his phone of him handing over the money but unfortunately he has since lost the phone. He says that his brother told him to get a receipt but he did not do so, as he trusted his wife. He said he had Facebook messages which would prove that the wife received the money.

The brother says that he had the £40,000 in his safe. Alternatively he may have got it out via a casino. At an earlier hearing he had explained to me that “whenever we need cash, yes, I often go to a casino and take out the money there because its very lot easier to take it out”. He says he accompanied the husband to Slough with the cash. He advised the husband to get a receipt. He did not see the husband hand over the money. He did see the wife walking past in the street. The husband did not mention taking photographs. He could not remember if they brought a third person with them; they might have done.

These stories, which were given in witness statements, were repeated from the witness box on oath.

Just to pull that together, the Husband got £40k in fifty pound notes, in sixteen separate bundles, and he got this from his brother, who got it from a safe, or from a casino. And they didn’t get a receipt. And he took photos, but those photos were on his phone, which is now lost. And he took a witness but can’t produce that witness.

One would expect that if the Wife was being handed a ten inch pile of fifty pound notes in Pizza Express that their waiter “Hi, I’m Russell and I’ll be your waiter tonight” was lingering around and being particularly attentive in the hope of a really good tip. I would have tried to track him down, I bet he would have remembered it either way.

Do you think Mostyn J went for this plausible account?

I have no hesitation in rejecting the evidence of the husband and his brother. I am certain it is false. Not only is it implausible in the extreme but it is not corroborated by contemporaneous documentary evidence or subsequent events. The husband has not produced any evidence from the alleged witness. His printouts of his Facebook account show no admissions from the wife (although the husband says that those were in audio clips which are referred to in the printouts.) The brother’s bank account does not show £40,000 taken from a casino at that time. It shows over four days in December 2013 £35,000 paid into a casino and £50,000 paid out, a net withdrawal of £15,000. Perhaps most significantly on 12 February 2014 in a conversation with the wife’s solicitor the husband said he “was not going to comply with the order”. In that conversation, as recorded in the attendance note, the husband did not say that two months earlier he had paid the wife £40,000 in cash which she had accepted in full satisfaction of her entitlement under the order. It is inconceivable that he would not have mentioned this if it had in fact happened.

If you ARE going to claim that you paid your wife 40 grand in used fifties, but that you can’t prove it in any way, it is probably NOT a good idea to tell her solicitor two months after the alleged transaction when they ask you for the money that you aren’t going to pay it, rather than “I have already paid her it”

Not only did Mostyn J not believe the Husband and make orders that the proper sum of money owed to the Wife would have to be paid, but he ruled that the Husband should pay the Wife’s legal costs at an indemnity rate (i.e as though her firm were charging private client rates rather than legal aid)and his Brother should have their evidence considered by the Director of Public Prosecutions to consider whether they should face trial for perjury.

If an inter partes order for indemnity costs were made against the brother and the husband on a joint and several basis then the wife’s solicitors would be entitled to relinquish the legal aid certificate and be paid on a private basis. This is perfectly acceptable; indeed given the very low rates of pay by the agency legal aid firms depend on such orders for their survival.

In my judgment the disgraceful conduct of the husband and the brother well justify an order for indemnity costs. The freezing order will remain in place until the balance of the costs award has been ascertained and paid. Obviously the freezing order is varied to permit the third party debt order to be executed.

I direct that this judgment and the court bundle be sent to the DPP for her to consider whether proceedings for perjury should be brought against the husband and the brother.

Yes, hard to prove to the criminal standard. I think Mostyn J quite right to say that the Husband’s account was considerably short of being more likely than not to be true, but proving that it is a lie to the criminal standard is quite tricky.

Oh yes.. I’m grateful, as I wasn’t familiar with that particular requirement

Perjury Act 1911
13 Corroboration..

A person shall not be liable to be convicted of any offence against this Act, or of any offence declared by any other Act to be perjury or subornation of perjury, or to be punishable as perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false.

That would seem to require that both the ex-wife AND another witness (surely not Mostyn J) give evidence as to why the statement is false. [Although ex-wife’s solicitor COULD presumable give evidence about the telephone conversation…]

If he had written to the solicitors to say that he wasn’t going to pay, that presumably would get around the ‘solely upon the evidence of one witness’ element. There might only be one witness, but there would be corroborative evidence.

That also means that the frequently asked question – “If a social worker lies, why don’t they get done for perjury?” should also contain that as part of the answer – if the evidence of lying was one person’s word against the other and the Judge decides to believe person A not person B and even if the Judge says person B was lying, it wouldn’t solve s13 of the Perjury Act 1911.

This clause does suggest that if I go in the witness box and say “It wasn’t me that injured the child, a midget strangler assassin baby came out of the sky in a minature helicopter, did it and then flew off” (the actual solution to a crime novel by Harry Stephen Keeler, by the way), then the fact that my partner was there and gives evidence that I’m lying about it wouldn’t amount to something that could lead to a Perjury conviction, due to s13, even though my lie is outlandishly and trasparently obvious.

A note on para 20 for Mostyn J: if you do get a legal aid certificate in cases like this (more and more rare) then any order for costs are at your full client rates – a rare exception to the indemnity rules; and if a judge has found no money was paid, I suppose she’ll get out of the LAA charge on what was never there…